The Senate’s Emergency Declaration Vote Is a Betrayal

Congress was supposed to check the president’s abuse of power. Instead, it’s abetting him.

President Donald Trump greets Sen. Mitch McConnell.
President Donald Trump greets Sen. Mitch McConnell after the State of the Union address in the chamber of the House of Representatives at the Capitol on Feb. 5 in Washington
Win McNamee/Getty Images

On Thursday, the Senate voted 59–41 for a resolution that would halt President Donald Trump’s plan to build a border wall under his self-proclaimed emergency authority. Press reports are calling this a setback for the president. But the real story is that 41 of the Senate’s 53 Republicans voted with Trump. That’s enough to sustain the veto he has promised. So the wall will proceed, even though Americans and their elected representatives oppose it.

Most Americans, in polls, have rejected Trump’s wall. Four months ago, in an election that Trump framed as a referendum on border security, voters installed a Congress that opposed the wall. Congress, in turn, refused to give Trump the money he had demanded for the project.
So the president issued an emergency decree to proceed on his own. Most lawmakers have voted to block Trump’s decree, but that’s not enough. Because of the president’s veto power, all he needs is one-third of either body to stand with him. And he has that. A president who lost the popular vote in 2016, backed by a party that lost the election of 2018, is acting against the will of the public. The threat to America isn’t coming from beyond our borders. It’s coming from within.

Many senators who stood with Trump on Thursday argued that this isn’t a constitutional crisis. They pointed out that Trump based his emergency decree on the 1976 National Emergencies Act, which affirms the president’s authority to declare a crisis and thereby claim “extraordinary” powers. Since Congress itself passed this law, these senators reasoned, the law itself amounts to legislative consent. Trump made the same argument on Thursday morning. “Our actions to address the National Emergency at the Southern Border,” he tweeted, are “EXPRESSLY authorized by Congress.”

This argument is a ruse. The Congress of 1976 couldn’t have expressly authorized Trump’s emergency, because in 1976, no such emergency had been declared. Trump is claiming his powers through creative interpretation. If you read the Emergencies Act, you’ll see that it focuses on constraining executive powers, not extending them. The principal constraint written into the law is that if the president declares an emergency, Congress has to vote on whether to terminate the declaration. The law includes specific timetables to make sure Congress moves quickly.

The problem with the 1976 law is that it posited a basic level of integrity. It assumed that the president wouldn’t use his emergency powers to appropriate money in defiance of the express will of Congress. It also assumed that if the president abused his authority, Congress would terminate the declaration. Those assumptions held true for four decades. But we now have a president willing to abuse his power, backed by a party willing to defend his abuses.

The senators who voted on Thursday to stand with Trump, based on the argument that Congress gave him the requisite authority in 1976, abdicated their responsibility under the law. The Congress of 1976 wrote into the Emergencies Act a mandate to future members of Congress. That mandate was to exercise independent judgment in assessing the president’s declaration and in applying the intent of the act. The Republican senators of 2019 were entrusted by the Congress of 1976 with the duty to check executive power. And they shirked it.

On Thursday morning, hours before the Senate voted, Majority Leader Mitch McConnell offered his Republican colleagues a cynical excuse to support Trump’s abuse. “If the 116th Congress regrets the degree of flexibility that the 94th Congress gave the executive, then the 116th Congress has the ability to do something about it,” said McConnell. He proposed to revise the Emergencies Act through future legislation enacted under “regular order.” Trump made the same pitch, offering to update the Emergencies Act “at a later date.” In the meantime, Trump and McConnell urged Republican senators to give Trump enough votes to sustain his veto and preserve the current emergency declaration. And they succeeded.

No one should trust this offer. A president who seizes the power of the purse in defiance of the will of Congress, which no president has done before, can’t be expected to accept real constraints. In fact, on Wednesday, Trump rejected a Republican proposal to limit his authority under the Emergencies Act. It’s laughable that McConnell, while urging Congress to give the president immediate and unprecedented emergency powers, insists that constraints on these powers should be deferred to a more orderly legislative process. Just give us this one coup, says the authoritarian party, and we’ll restore democracy.

One of the senators who voted with Trump on Thursday is Thom Tillis, a Republican from North Carolina. Two weeks ago, in the Washington Post, Tillis wrote that he opposed Trump’s declaration. “I am a member of the Senate, and I have grave concerns when our institution looks the other way at the expense of weakening Congress’s power,” the senator explained. “It is my responsibility to be a steward of the Article I branch, to preserve the separation of powers.” There was “no intellectual honesty,” Tillis observed, in Republicans defending “executive overreach” by Trump after opposing it under President Barack Obama.

But that’s exactly what Tillis did on Thursday. In a grotesque obeisance on the Senate floor, he reversed himself and announced that he would vote with Trump. “The White House has been very gracious, and I should say very patient” in tolerating Republican dissenters such as himself, Tillis told his colleagues. In fact, he added, the White House had magnanimously arranged for Trump to “make a statement that he’s willing to work with us.” Tillis concluded: “That this president is prepared to transfer power back to the Article I branch by his statement, either publicly or through his administration, is extraordinary.”

No. What’s extraordinary is a senator bowing and scraping over a president’s hypothetical offer to “transfer power back” to Congress. What’s extraordinary is a bloc of senators colluding with a president to force through an expenditure that the American people and their representatives rejected. What’s extraordinary is the Congress of 2019 betraying the Congress of 1976 and the Framers of the Constitution.

The election, by a non-plurality of voters, of a commander in chief with no respect for rules or precedents was just the first stage of our descent into autocracy. We’re now in the second stage: consolidation of power behind the autocrat, secured by his abettors in Congress. There is indeed a national emergency. But the threat isn’t coming from Mexico. It’s coming from the Republican Party.